IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Datoc v. Raj, |
| 2013 BCSC 308 |
Date: 20130227
Docket: M095617
Registry:
Vancouver
Between:
Roderick
Paul Datoc
Plaintiff
And:
Ram
Raj
Defendant
Before:
The Honourable Mr. Justice Sigurdson
Reasons for Judgment
Counsel for the Plaintiff: | Dairn O. Shane |
Counsel for the Defendant: | Anthony Leoni |
Place and Date of Trial: | Vancouver, B.C. October 1-5 & 12, |
Place and Date of Judgment: | Vancouver, B.C. February 27, 2013 |
Introduction
[1]
The plaintiff, Roderick Paul Datoc, was involved in a collision with a
vehicle driven by the defendant, Ram Raj, on July 28, 2008 at the intersection
of 84th Avenue and 128th Street in Surrey. Each driver
testified that he entered the intersection on a green light, and no other
witnesses to the accident were called. The defendant denies liability, but
says that if he was negligent, the plaintiff was contributorily negligent
because he was speeding and timing the light just before entering the
intersection.
[2]
The plaintiff claims to have suffered injuries including neck and low
back pain and headaches. The most significant injury he claims is persistent
and debilitating lower back pain, which has resulted in a substantial claim for
general damages, past wage loss and loss of earning capacity.
[3]
The defendant says that if the plaintiff was injured in the collision,
which resulted in minimal property damage, the plaintiffs injuries are far
less serious than the plaintiff professes, and a modest award should be made
for non-pecuniary damages and loss of past wages, and no award for loss of
earning capacity or cost of future care should be made.
[4]
I will deal with the issues of liability and contributory negligence,
and then discuss the question of damages where the defendant asserts that the
plaintiff failed to mitigate his damages.
The Accident
[5]
At the time of the accident, the plaintiff was driving to work from his
parents home, and the defendant was driving his wife to a dialysis
appointment.
[6]
The motor vehicle accident occurred on a sunny morning sometime between
6:00 a.m. and 7:00 a.m. The intersection had traffic control lights with a
through lane and a left turn lane for each driver.
[7]
At the time of the accident, the plaintiff was about 26 years old, and
the defendant 76 years old. At the time of trial, the plaintiff was about 30
years old and the defendant 80 years old.
[8]
Before the accident, the drivers were perpendicular as they approached
the intersection, the plaintiff travelling westbound on 84th Avenue,
and the defendant travelling southbound on 128th Street. The accident
occurred when one of the drivers entered the intersection on a red light. The
plaintiffs drivers side fender struck the mud guard of the defendants
vehicle. After the collision, the defendant proceeded through the intersection
and parked at the side of the road. The drivers got out of their vehicles. The
plaintiff was upset but calmed down when he learned that the defendant was
taking his wife to a dialysis treatment appointment. While the circumstances
that led to it are unclear, the plaintiff wrote on a paper bag that the
defendant was running red light and took a cell phone picture of the
defendant holding that bag, which also contained the defendants license particulars.
After the photograph, the parties left the area of the accident. The
defendant did not ask the plaintiff for his licence information but later that
day, after talking to his granddaughter, called ICBC and gave them a statement
to the effect that upon entering the intersection he was in fact facing an
amber light.
[9]
The defendants wife, who was in the vehicle, did not testify. According
to the defendant, she is not well. Counsel for the plaintiff seeks an adverse
inference against the defendant for not calling her or providing a fuller
explanation as to why she did not testify.
[10]
According to the plaintiff, he was proceeding westbound along 84th
Avenue towards the intersection with 128th Street. He was wearing a
seat belt. He testified that he assumed the speed limit was around 60 kph.
[11]
The plaintiff estimated that he was about thirty feet from the
intersection, travelling at a speed of about 40 kph, when he saw the light at
the intersection ahead go green. The plaintiff said he then sped up to about
55-60 kph, and entered the intersection on the green light. At the stop line he
looked to his right because people sometimes run red lights. He said that as
he crossed into the intersection and looked right he saw the defendant speeding.
He braked his vehicle as quickly as he could, but said that he could not avoid
the collision. He had reduced his speed he said to about 10 kph when his
drivers side front fender made contact with the mud guard of the
defendants vehicle. The plaintiff said that he could not stop in time to
avoid the collision. He described the contact as resulting in his body moving
slightly and a jolt. He also described it as a considerable bump. He said
he could feel it and testified that his body moved slightly.
[12]
After the collision, the defendant proceeded through the intersection
and parked at the side of the road, and the drivers got out of their vehicles.
The plaintiff was upset. The plaintiff said that he asked the defendant why he
ran a red light. The defendant apologized and said he was taking his wife to
dialysis.
[13]
While the circumstances that led to it are unclear, the plaintiff wrote the
defendants license particulars and running red light on a paper bag and
asked the defendant to hold the bag up and allow the plaintiff to take his picture.
The plaintiff took a cell phone picture of the defendant holding that bag. The
reason, he said, was that in past accidents he had not taken enough information.
After the photograph, the parties left the area of the accident. The
defendant did not ask the plaintiff for his licence information.
[14]
The plaintiff drove to his common-law wifes home and phoned work to say
he was not coming in. He said had felt a little pain in his lower back, had a
nap, and when he woke that afternoon, he went to see his family doctor, Dr. Chen.
[15]
The damage to the defendants car was about $250. The damage to the
plaintiffs vehicle was to the bumper, not structural, and cost $1,080.03 to
repair.
[16]
The defendant, Mr. Raj, testified that the plaintiff ran the red
light. He testified at trial that he had entered the intersection on a green
light. However, in a statement to ICBC made after the accident, he told ICBC that
he entered the intersection on an amber light. As to why he signed the paper
bag with the reference to his running the red light, the defendant explained the
plaintiff was a larger man and was upset and agitated, that he (the defendant)
could not read or speak English, and that he did not know what he was signing. The
defendant said that he was not aware that the plaintiff had taken a photograph
of him with the bag.
Liability
[17]
The determination of the issue of liability is essentially a question of
credibility. Although, as I will describe in my discussion of damages, I have
serious concerns about the plaintiffs credibility, I prefer his evidence over
that of the defendant on the issue of liability. I find, on a balance of
probabilities, that the accident occurred in the manner described by the
plaintiff.
[18]
The evidence as a whole indicates that at the time of the collision, the
defendant believed he was at fault, likely, I conclude, for having run the red
light. I reach this conclusion for a number of reasons. The plaintiff
obtained the defendants license information from him, but the defendant did
not ask for the same information from the plaintiff. I have taken into
consideration that the defendant may have thought the accident to be quite
minor, but nevertheless, if he believed that he had entered the intersection on
a green or amber light and that the plaintiff had run the red light, I expect the
defendant would likely have asked the plaintiff for his licence information. I
have also taken into consideration that the defendant may have found the
plaintiff intimidating, which may have affected the defendants behaviour at
the scene.
[19]
The defendant posed for a photograph with a note that said running red
light. That of course is of little significance if the defendant did not read
English. The defendant testified that he did not know much English, could
write very little and could not read English. He said that he did janitorial
work after he arrived in 1984 in Canada until he retired.
[20]
I find that the defendant spoke to the plaintiff in English when he told
the plaintiff that he was taking his wife to a dialysis appointment. This
appears likely to be an explanation as to why he entered the intersection as he
did. The evidence as a whole suggests that the defendant speaks and likely
writes some English. He has been in Canada since 1984 and his children and
grandchildren speak English. He also admitted some ability in conversational
English. I find that he was aware not only that running red light had been
written on the paper, but that the plaintiff was taking a picture of him for
informational purposes to confirm that fact. Although he denied that he knew a
picture was been taken, the photo itself suggests otherwise.
[21]
Considering the whole of the evidence, including in particular his
cross-examination, I find it is likely that the defendant understands and reads
more English than he professes. The evidence of the photo suggests that the
defendant, at the time of the accident, believed that he was at fault for
entering the intersection on a red light.
[22]
I do not draw an adverse inference from the failure of the defendant to
call his wife to testify because I think an explanation was provided by him as
to her state of health sufficient to justify her non-attendance at trial.
[23]
However, on all of the evidence, I find that the accident was caused by
the defendant entering the intersection on a red light when the plaintiff had a
green light.
Contributory Negligence
[24]
I now turn to the question of contributory negligence.
[25]
The defendant argues that if the plaintiff entered the intersection on a
green light, as I have found, he did so very shortly after the light facing him
turned green. The defendants counsel says that the plaintiff was contributorily
negligent for what he refers to as speeding and timing the light.
[26]
The defendants counsel says that, according to the plaintiffs evidence,
the light turned green for him when he was about 30 feet from the intersection
and he was travelling 55 to 60 kph as he entered the intersection.
[27]
The plaintiffs counsel argues that since at least Walker v. Brownlee,
[1952] 2 D.L.R. 450 (S.C.C.), a driver is entitled to assume other drivers will
comply with the law, i.e. not go through a red light. The plaintiffs counsel says
that a similar argument about timing the light has been rejected in other
cases, particularly where there is no independent evidence that the plaintiff
was actually timing the light or no engineering evidence that the accident could
have been avoided had the driver not been timing the light.
[28]
Moreover, the plaintiffs counsel says that there was no evidence as to
what the speed limit in the area was. The defendant introduced a by-law that
the speed limit on roads in Surrey was 50 kph unless otherwise stated, and
there was no evidence it was otherwise stated. As such, the defendant argues
that the plaintiff was speeding. The plaintiff testified there was some obstruction,
described as a bus stop and a hill, which restricted his sightline down the
road in the direction the defendant was coming. The defendant did not comment
on this and the plaintiff said he only saw the defendant a moment before the
accident.
[29]
The plaintiff, as I have found, was entering the intersection on a green
light. As such he was the dominant driver.
[30]
The oft-quoted passage from the concurring judgment of Cartwright and
Locke JJ. in Walker v. Brownlee succinctly set out the duties of a
driver in the dominant position:
The duty of a driver having the statutory right-of-way has
been discussed in many cases. In my opinion it is stated briefly and accurately
in the following passage in the judgment of Aylesworth J.A., concurred in by
Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223:
"Authority is not required in support of the principle that a driver
entering an intersection, even although he has the right of way, is bound to
act so as to avoid a collision if reasonable care on his part will prevent it.
To put it another way: he ought not to exercise his right of way if the
circumstances are such that the result of his so doing will be a collision
which he reasonably should have foreseen and avoided."
While the judgment of the Court of Appeal in that case was
set aside and a new trial ordered [ [1952] 1 D.L.R. 82] there is nothing said
in the judgments delivered in this Court to throw any doubt on the accuracy of
the statement quoted.
In applying this principle it is necessary to bear in mind
the statement of Lord Atkinson in Toronto R. W. Co. v. King, 7 C.R.C.
408 at p. 417, [1908] A.C. 260 at p. 269: "Traffic in the
streets would be impossible if the driver of each vehicle did not proceed more
or less upon the assumption that the drivers of all the other vehicles will do
what it is their duty to do, namely, observe the rules regulating the traffic
of the streets."
While the decision of every motor
vehicle collision case must depend on its particular facts, I am of opinion
that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.
[31]
This basic position was also described in Pacheco (Guardian ad litem)
v. Robinson, (1993), 75 B.C.L.R. (2d) 273 (C.A.) at paras. 18 and 21:
18 In my opinion, when a driver in a servient position
disregards his statutory duty to yield the right of way and a collision
results, then to fix any blame on the dominant driver, the servient driver must
establish that after the dominant driver became aware, or by the exercise of
reasonable care should have become aware, of the servient driver’s own
disregard of the law, the dominant driver had a sufficient opportunity to avoid
the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour
of the dominant driver. …
21 To quote Cartwright, J. in Walker v. Brownlee
at p. 461:
. . . [W]hen the time arrived at which he [the plaintiff]
could reasonably have been expected to realize that [the defendant] was not
yielding the right of way, it would have been too late for him to do anything
effective to prevent the collision.
[32]
A further statement of the principle is found in Salaam v. Abramovic,
2010 BCCA 212 at para. 25:
25 A driver like the
defendant, who is in a dominant position, will not typically be found to be
liable for an accident. Drivers are generally entitled to assume that others
will obey the rules of the road. Further, though defensive driving and
courteous operation of motor vehicles are to be encouraged, they do not
necessarily represent the standard of care for the purposes of a negligence
action. A driver will not be held to have breached the standard of care simply
because he or she failed to take extraordinary steps to avoid an accident or to
show exceptional proficiency in the operation of a motor vehicle.
[33]
The defendant relies on MacCrimmon v. Cherniwchan, 2005 ABQB 195:
the plaintiff had an advance green and, turning left, was struck by the
defendant coming through the intersection.
[34]
The trial judge, Clackson J. found the defendant 35% at
fault as he was timing the lights and not reducing his speed, and would have
seen the plaintiffs vehicle if he was focussing on the traffic rather than
just the lights. The judge said:
5. A prudent driver would have slowed for the red
light to a speed far less than Mr. Cherniwchan’s given that the light governing
his travel did not turn green until he was approximately one car length from
the intersection.
…
19 I accept the
Plaintiff’s characterization of the circumstances and the Defendant’s actions.
As such I am satisfied that the Defendant ought to have known that his path was
encumbered by the Plaintiff’s vehicle and had he exercised reasonable care and
skill he would have been in a position to avoid or at least significantly
reduce the force of impact.
[35]
In MacCrimmon, the judge found that the defendant ought to
have known his path was encumbered by the plaintiffs vehicle, and had he been focussing
on the road, rather than timing the light, it would have allowed the defendant,
with reasonable care and skill, to have avoided, or at least significantly
reduce, the impact.
[36]
But here, I am not persuaded that the defendant has established contributory
negligence on the part of the plaintiff. While there was an element of timing
the light, the plaintiff testified he had his foot covering the brake as he approached
the intersection. While he perhaps ought to have driven more defensively or
prudently, I am not satisfied that it has been shown that the plaintiff had a
sufficient opportunity to avoid the collision, or that with reasonable care the
collision could have been avoided or the impact reduced. It was not shown by
the defendant on the evidence that the plaintiff was exceeding what was the
permissible speed limit. There was no evidence of the posted speed limit at
the location of the accident. The evidence was unclear as to whether the
plaintiff saw or ought to have seen the defendant much before the intersection,
as the evidence of the sightlines of the plaintiff was unclear.
[37]
The plaintiff entered on a green light; the defendant on a red light; any
doubt on the issue of contributory negligence should be resolved in favour of
the dominant driver. Although I do not agree with the plaintiffs counsel that
the defendant must call expert evidence that the collision could have been
avoided or the impact reduced if the plaintiff had acted differently, on the
evidence before me, I find that it is speculative whether different conduct on
the part of the plaintiff would have reduced or avoided the impact.
[38]
Therefore, I am not satisfied on the evidence that the defendant has
demonstrated that the plaintiff, using reasonable care once he became aware of
the defendants disregard of his statutory duty to yield the right of way, would
have reduced or avoided the impact.
Damages
Non-Pecuniary Damages
[39]
The plaintiff alleges that, as a result of the accident, he has suffered
headaches, neck pain, and, most significantly, debilitating and persisting
lower back pain.
[40]
The plaintiff says that before the accident he had no headaches or neck
pain, and only experienced some temporary mid-back pain from a football injury.
The significant and persisting injury from the accident, according to the
plaintiff, is to his lower back.
[41]
The plaintiff testified that on impact, there was a noticeable bump or a
jolt, and although he had his seatbelt on, he felt his body move slightly. He testified
that he did not hit anything in the vehicle during the collision. He testified
that he thought he was in a little bit of shock, and started to feel pain in
his lower back when he was at his common-law wifes home where he went after
the accident. He said he had a nap and when he woke up, he could not move. He
slept until around 11:00 a.m. or noon, and then went to see his family
doctor, who had been treating him since 2005. When he saw his doctor, he complained
of a stiff neck and a headache.
[42]
The plaintiff said his family doctor recommended some medication. He
said the pain was very high the rest of the week, primarily in his lower back. He
said that sitting was impossible because of the intense pain; talking and
typing notes at work was not possible because he could not concentrate. He went
on short-term disability leave for about eight weeks from his work at Top Pro,
a real estate software support company where his work required him to sit,
answer the phone and use a computer.
[43]
The plaintiff also had physiotherapy, where he was treated by ultrasound
and a muscle stimulator. He testified that although the physiotherapy helped
during the treatment, by the time he was home, he was once again in pain.
[44]
He described his pain as it was in the latter half of 2008 as being constant
in his right leg, which he could not lift, that he had difficulty sitting,
standing or walking, and he described having a hard time brushing his teeth and
washing his face. The plaintiff described pain when tilting his head, and that
his headaches were like dull aches, pulsing and making concentration difficult.
Although he had gone to the gym regularly before the accident, he did not
after. He said he found going too painful. On one occasion he was unable to
attend an engagement party because of his injuries.
[45]
His son from his common-law relationship was born in 2008. The
plaintiff said that he found caring for his child difficult, because all he was
able to do was to feed his son while the child sat on his lap.
[46]
With respect to household chores, the plaintiff said that after the
accident he could not cook, and although he attempted to clean the dishes, he only
could for a minute or two.
[47]
In 2008, the plaintiff was treated by Dr. Mackenzie, a chiropractor.
He received a series of treatments called spinal decompression where the
patient is supported by a machine, specific discs are targeted, and pressure is
relieved. Up until May 2009, the plaintiff had 33 such treatments at a total
cost of $8,740.
[48]
When it was suggested to the plaintiff on cross-examination that he told
Dr. Herschler, the expert called by his counsel, that there was a 50%
improvement after the spinal decompression, the plaintiff responded there was
no improvement after the spinal decompression.
[49]
In 2009, the plaintiff attended an organization called Back in Motion at
the suggestion of ICBC. A number of treatment options were recommended for
him, however the plaintiff found that the treatment did not improve his
symptoms very much.
[50]
The plaintiff attempted a gradual return to work in the middle of 2009 for
two or three hours per day. He eventually progressed up to five hours,
although during this attempt at a gradual return, he did miss a few days of
work. The plaintiff testified that he did not have any success getting back to
full-time work because the pain in his lower back interfered with his ability
to sit. He said he could not stand or make notes and there were times when
just attending work put his back into spasm.
[51]
The plaintiff testified that in 2009 his headaches decreased in terms of
intensity but his back pain flared up when he was in certain positions. His low
back pain remained the same, he said. Although his son was growing, their
interaction, he said, remained limited.
[52]
In 2009, the plaintiff travelled to the Philippines for a four week trip.
He said that he was able to handle the 17-hour flight because he wore a back
brace and could sleep with a double dose of medication.
[53]
In the first week of 2010, the plaintiff was terminated by his employer,
Top Producer, because of his number of absences. He said that he then tried to
get freelancing work as a real estate photographer, a job taking photographs of
properties listed for sale. This became what he called his Plan B when his
job at Top Producer did not work out.
[54]
The plaintiff said he did a little photography work in 2010, although that
amounted to fewer than 50 photo shoots. He described his headaches as being fairly
mild, but still bothersome in 2010, and by the end of that year he had them
most days but they were not as intense. The neck pain he described was
primarily from tilting his head back.
[55]
The plaintiff testified that his lower back pain remained his most
significant complaint, and that it was not improving. He did not return to the
gym. He said that he did the exercises recommended at Back in Motion two or
three times per week but he found the exercises painful and not really helpful.
[56]
The plaintiff testified that by 2011 the headaches were pretty much the
same; his neck was slightly better, with pain occurring once in a while instead
of daily; and, his lower back pain remained pretty much the same.
[57]
The plaintiff testified that in 2012 he suffered from headaches three or
four times per week. He said his neck pain was greater in the morning, as it
flared up when the temperature was colder. He said his lower back pain was
always an issue, causing him constant pain, and gaining in intensity during the
day.
[58]
In July 2011, the plaintiff saw a naturopath and obtained a prescription
for medical marijuana to relieve his pain. The plaintiff said that the medical
marijuana assisted him to sleep. He said he stopped having panic attacks,
and that he no longer experienced chest pain.
[59]
The plaintiff described that he takes the medical marijuana through
cookies, and, in the evening, by a vaporizing unit. He testified that at
nighttime it is enough to give him a high so he sleeps. He said that as a
result of taking medical marijuana that when walking around he can look pretty
normal. He said he had only tried marijuana once or twice before the accident.
He considered trying it because over-the-counter medication had not worked and that
he had acid reflux and pain from the medication that was prescribed.
[60]
On cross-examination, the plaintiff was asked about his posting on the
internet under the name Nismo200sx in light of his comment that he had only taken
marijuana once or twice before. Although those postings suggested an interest
in marijuana beyond simply as a treatment for his back pain, the plaintiff denied
any recreational interest in marijuana.
[61]
When giving his evidence at trial and while he was in the gallery while
others testified, the plaintiff appeared to be in extreme discomfort, having
great difficulty sitting and regularly adjusting his sitting position. The
defendant introduced video surveillance evidence showing the plaintiff in May,
June and July 2012. There were dramatic differences between the way the
plaintiff moved and sat on the video surveillance as compared with how he did in
court, an observation that is not disputed.
[62]
Mr. Datoc explained his apparent physical discomfort in court to be
because he was not on medical marijuana while he was in court.
[63]
The plaintiff was asked about the surveillance videos shown at trial,
which videos showed him driving a car and doing his photography work in May,
June and July 2012. He agreed he looked relatively normal in the videos,
but said it was because he was using medical marijuana. He said when he returns
home in the evenings, he uses a mechanical massage machine and a backrest to
assist his back. The plaintiff said that if he did not take medical marijuana,
he would look like a disabled person and said he would be subject to attack,
which I took him to mean that he thought he would appear vulnerable if he went
to work in that state. He testified that he would stop using medical marijuana
if his injury healed.
[64]
The plaintiff testified that the accident has affected his activities.
For example, he said he is now very limited in what he can do around the house;
he cannot carry his son or help out his wife, who has to clean, cook and do almost
all the housework.
[65]
Up to June 2012, the plaintiff saw Dr. Irene Chan, a general
practitioner, 128 times for his injuries. From July 8, 2008 to June 2012, the
complaints he made to her were virtually the same on each occasion. Dr. Chen
was not called as an expert witness but testified simply with respect to some
of the observations she made.
[66]
The plaintiff was unclear as to why, after the accident, he did not go
to work that day. He said that it was because of the damage to his vehicle and
also, as he put it, who knows if I would begin to feel pain and he was not
that far from the accident to when [he] got to [his] wifes place. He agreed
that the damage to his vehicle was not structural but said that the fog light
on the bumper was damaged.
[67]
I find that the plaintiff told Dr. Herschler after the spinal
decompression treatment he felt his back was about 50% better, a statement the
plaintiff now disputes he made.
[68]
He agreed that he saw Dr. Condon, a general practitioner with a
referral practice in musculoskeletal pain management, on April 28, 2009. According
to Dr. Condons records, the plaintiff reported to him at that time that he
was sleeping better and no longer suffering headaches. The plaintiff, however,
disagreed with reported comments to Dr. Condon that he was no longer
reporting headaches. He said he tried to return to work but with his back problem
it was too difficult. He said that Dr. Condon had recommended core
strengthening exercises but that he did not do them because of the pain.
[69]
On two occasions the plaintiff was examined by Dr. Froh, an
orthopaedic surgeon retained by the defendant. He was also examined by Dr. Herschler,
a rehabilitative medicine specialist retained by his counsel. Both expert
witnesses were called to testify at trial.
[70]
The plaintiff agreed that he had reported his symptoms to Dr. Froh
truthfully and to the best of his ability. He was asked on cross-examination about
his abilities to take photographs and said that he could squat low, could bend
his back and knees to take photographs temporarily. He said he could bend at
the waist and lean back for a short period of time and could extend the tripod
over his head and take photographs. He agreed that he could do these tasks for
a short period of time.
[71]
He told Dr. Froh he was not feeling too many headaches at the time he
saw him but still had them.
[72]
The plaintiffs 36-year-old common-law wife, Alma Soriano, testified. She
testified that they live with their 4-year old son in a basement apartment in
Surrey. He stayed at his parents, she said, when he had to go to work in the
morning, which was the case at the time of the accident. She said that he did
not have neck or lower back problems before the accident but she massaged his
back for some upper back problems.
[73]
Ms. Soriano said that the plaintiff now has lower back and neck and
headache problems and that his back goes into spasm once a month. She says
that he cannot carry their son and that he copes with the pain by the use of
medical marijuana.
[74]
She knew of his earlier football injury. She said that he can now lift her
son for a short time. She said that she felt he was totally motivated to work
at Top Producer because of his obligation to support them. She testified that
in his present work he has to grab bags and his camera and she finds that he is
really in pain. She said that she has to do all of the work at home.
Expert Evidence
[75]
Dr. Herschler and Dr. Froh both provided expert medical legal
reports and testified at trial.
Dr. Herschler
[76]
Dr. Herschler, a rehabilitation specialist or a specialist in
physical medicine and rehabilitation, saw the plaintiff once, on September 15,
2011. He said that the plaintiffs injury would be classified as a soft tissue
injury.
[77]
Dr. Herschler provided a medical-legal report dated September 15, 2011.
In the Diagnosis section of his report, he said:
Roderick Datoc presents with a three year and two month
history of persistent pain in the central location of the low back. The pain
occasionally refers into the thighs, but is not associated with numbness,
tingling or weakness. The pain is made worse with bending, lifting, prolonged
sitting and standing. These symptoms date from a motor vehicle accident on
July 28, 2008. He also has a pre-existing injury to the mid back that
continues to flare-up intermittently, as it did prior to the accident. Post-accident,
however, he has noticed increased mechanical pain when extending the head backward.
… There is a significant loss of range of the low back in
all directions, as well as tenderness with pressure on the spinal ligaments in
the lumbar spine and sacrum. There is evidence of deconditioning and weakness
in the lower back.
Based on the history, physical
examination, review of documentation and a description of the accident, it is
my opinion that the mechanical injury to the low back was caused by the motor
vehicle accident of July 28, 2008. Mr. Datoc had no symptoms in this
region prior to the accident.
[78]
With respect to his prognosis, Dr. Hershcler said:
In my own practice, 80% of
patients with these types of injury will heal within three years, while another
10% will take five years, and 10% will have permanent symptoms. Given this
model, Mr. Datoc has a 50-50 chance that his symptoms will either improve
over the next two years or will persist indefinitely.
[79]
Dr. Herschler agreed that there was no evidence of muscle spasm but
said that on his examination deep palpation of the lumbar paraspinals revealed
hypertonicity and guarding. He commented that the plaintiff did not embellish
or minimize his pain and found that there was no wincing while he was just
sitting there, but there was on palpation of the lumbar spine.
[80]
Mr. Datoc made no reference to Dr. Herschler of headaches.
[81]
Three years after the accident, Dr. Herschler found greater
restriction on flexing and extension than Dr. Condon apparently had found a
year after the accident, something that Dr. Herschler said was not typical.
Dr. Froh
[82]
Dr. Froh, an orthopaedic surgeon, saw the plaintiff on two occasions
at the request of ICBC, in 2009 and in 2012. When he drafted his second report,
he had reviewed the written opinion of Dr. Herschler.
[83]
Dr. Froh commented that there were significant non-organic findings
(he described these as physical findings on examination that do not correlate
to pathology) which while he agreed did not establish a lack of credibility or
faking but was something he said were useful when evaluating a patient because
a doctor should look for a correlation of symptoms and physical findings. These
are referred to as Wadell Signs, but do not mean malingering, he agreed, but only
that there could be another cause.
[84]
In his opinion, nothing prevents the plaintiff from returning to work in
a sedentary occupation and he recommended core strengthening as well as weight
loss. Dr. Froh explained that the plaintiff complained of neck pain with
extension but this, he thought, was not congruent with the Spurlings test in
that he passively extended the neck, rotated it and applied compression, but
the plaintiff was pain free during these tests.
[85]
Dr. Frohs diagnosis was also of a soft tissue injury – a grade one soft
tissue injury to the cervical spine, which he described as an injury to the
cervical spine that results in pain without any neurological findings and
without any restriction in cervical range of motion.
[86]
Dr. Froh noted different behaviour by Mr. Datoc when he was
being observed as opposed to when he was distracted. In his July 2012 report
he wrote:
During the examination he had a
loping gait but there was no antalgic component. Walking into the examining
room from the waiting area he had a slight limp. When observed walking down
the hallway before coming to my office, he had a normal gait without a limp and
walking off to the elevator while leaving, he had a normal gait without limp
and walked with a normal pace.
[87]
When Dr. Froh saw the plaintiff on the second occasion, the plaintiffs lumbar
spine range of motion had improved and he did not have the wincing from
pressure to the lower lumbar spine when being examined.
[88]
Dr. Froh disagreed with the plaintiffs use of medical marijuana, because
the plaintiff started that treatment without being assessed or followed by a
chronic pain management team.
[89]
Dr. Froh opined that Mr. Datoc was not disabled from work and that while
some activities might cause discomfort he opined that there is no problem that
they would be made worse by activity.
[90]
Dr. Frohs conclusion in his July 2012 report was:
This patient’s diagnoses includes:
1. Very mild
mechanical neck pain only with extension. This does not correlate well with the
fact that Spurling’s test uses extension, rotation, and compression and this
was pain-free at the neck. This patient shows no evidence of structural damage
to the cervical spine. There is no evidence of disc herniation or nerve root
irritation. He does have pre-existing C4-5 degenerative changes. I previously
had a diagnosis of a Grade I whiplash, which had resolved by the time I saw him
in April 2009. His neck is essentially normal with a complaint of pain upon
extension. While Dr. Chan’s clinical records would indicate the patient
may have had a WAD II-type whiplash, in fact, her clinical records are of no
use in evaluating this patient and when I saw the patient in April 2009, he
stated that he did not have a significant decrease in neck range of motion
post-motor vehicle accident.
2. Mechanical
lower back pain referable to the posterior facet joints and SI joints. There is
no evidence here of any disc herniation, nerve root impingement, or structural
damage to the lumbar spine. There was mild tenderness over the posterior facet
joints and SI joints but only the right SI joint correlated with provocative
tests. This patient does have pre-existing degenerative changes at the L3-4 and
the L4-5 levels.
3. Significant
non-organic findings indicating that at least a portion of the patient’s
symptoms are not due to organic pathology.
4. Significant
potential for secondary gain. This includes both monetary gain and the possible
loss of his medical marijuana license.
None of the findings in the reviewed records as well as the
patient’s history and physical findings on the May 18, 2012 examination changed
my original opinion. When I saw this patient in September 2009, I did not think
that he was disabled from doing sedentary work. Despite this, he did not get
back to full-time work until November 2009. I can think of no medical reason
why the patient would be off for this length of time. 6 to 12 weeks is adequate
time off work after soft tissue injuries such as these, especially with an
accommodating employer. Even if you factor in to the equation that the patient
had some pre-existing degenerative changes at the cervical spine and lumbar
spine, I would expect a return to work by six months, even for a moderately
strenuous job. He should never have taken that long to get back to a sedentary
job. There is no medical justification for his length of time off his job.
At this point in time the patient has some mild mechanical
lower back pain. He had some mechanical lower back pain prior to the motor
vehicle accident. While he might be having discomfort with certain activities,
both vocational and recreational, he would not be doing himself any harm. I do
not think that he is restricted from doing any kind of activity although if he
did heavy lifting, heavy yard work, or running, that he might have increased
back pain. Despite this, he would not be doing himself any harm.
This patient does not require any ongoing treatment. I think
any further passive treatment would be a waste of time. This patient does have
an exercise program that he could do for his lower back including core
strengthening, which he refuses to do. I certainly would not agree with any of Dr. Hershler’s
suggestion with regards to treatment.
This patient will not develop
osteoarthritis at the neck or back as a result of this motor vehicle accident. The
pre-existing degenerative changes at the cervical spine and lumbar spine will
not progress any faster as a result of the motor vehicle accident from July
2008. This patient will not require surgical intervention now or in the future
as a result of his motor vehicle accident from July 2008.
[91]
Dr. Froh on cross-examination acknowledged that he discounted what
the plaintiff told him about his back pain:
Q So my question to you is this. In your
conclusion that he has mild mechanical lower back pain, is that strictly based
on your physical examination and basically discounting what he had told you,
what Dr. Chan’s records are indicating, and the pain scale?
A Yes.
Q And if you did not discount what he told you
and if you accepted his pain scale as being a six to ten, would you conclude
that his back pain is probably more in the moderate to severe area?
A At least
moderate, yes.
Parties Positions on Damages
[92]
The plaintiff submits that an appropriate award should be non-pecuniary
damages of $75,000, past wage loss of $80,000 (after deduction for income tax)
and loss of earning capacity of $275,000. The plaintiff also seeks special
damages of $9,049.84, the largest being spinal decompression at a cost of $8,740,
and future care costs of $20,000.
[93]
The defendants position is that non-pecuniary damages should be awarded
at somewhere between $25,000-$35,000, past loss of income of $7,650, special
damages as claimed, and there should be no amounts awarded for future care
costs or loss of earning capacity.
[94]
Finally, the defendant says that there should be a reduction in the
plaintiffs award for failure to mitigate his damages by failing to undertake a
rehabilitation program of core strengthening and stretching recommended by a
rehabilitation consultant after the accident.
Discussion
[95]
The nature and extent of the plaintiffs injuries and the extent to
which the plaintiff currently suffers from his injuries depends on the
subjective reporting of the plaintiff. The credibility and reliability of the
plaintiffs evidence are therefore important issues.
[96]
I conclude that both Dr. Froh and Dr. Herschler. as well as
the plaintiffs treating doctors, in assessing the extent of the plaintiffs injury,
relied on the subjective reporting of the plaintiff, because there were no (or very
minimal) observable physical consequences of the injury.
[97]
First, let me briefly review the parties submissions on credibility.
[98]
The plaintiffs counsel says that the plaintiff was credible. His
counsel says that the plaintiff was not evasive or argumentative, provided
evidence of his medical condition consistent with documentary evidence, and
explained why he looked normal in the video surveillance compared to his
appearance in court. The plaintiffs counsel says that the plaintiffs
evidence was generally consistent with documentary evidence and any inconsistencies
were explained.
[99]
The defendants counsel, on the other hand, points to these factors
which he says I should take into consideration in assessing both credibility
and damages:
(a)
the accident was extremely minor in nature in terms of the severity of
the impact;
(b)
the plaintiff had significant distraction-based findings by Dr. Froh;
(c)
the plaintiff was inconsistent in his presentation of symptoms to the
extent of whether his symptoms had improved and the duration of neck and
headache symptoms, all of which should affect the weight given to the
plaintiffs subjective complaints;
(d)
there are prior injuries that may never completely resolve which are
likely to be responsible for the plaintiffs current complaints; and
(e)
there is no objective evidence of injury.
[100] My
conclusion is that the plaintiff suffered a soft tissue injury in the motor
vehicle accident. However, I find that his symptoms were far less severe than
the plaintiff asserts, and will have resolved by now. I do not accept the
plaintiffs evidence that his injuries persisted to the degree that he said
that they did, or that they continue to have any impact on his ability to earn
income. I have concluded that the plaintiff, although he probably suffered
injuries in the accident, was simply not hurt to the degree to which he
testified.
[101] My reasons
are as follows.
[102] The
accident was very minor. The plaintiff testified to feeling a slight jolt upon
impact. While recognizing that significant injuries can occur from mild
collisions, the court nevertheless should proceed with caution when the
plaintiffs complaints of persisting soft tissue injuries continue beyond the
normal recovery period: see Price v. Kostryba (1982), 70 B.C.L.R. 397
(S.C.). That is the situation here.
[103] I was
shown video surveillance evidence of the plaintiff taken over a number of days
in the months shortly before the trial. These videos showed the plaintiff
getting in and out of his car, driving his car and taking photographs as a real
estate photographer. This included squatting, and holding a tripod above his
head to take pictures. He moved fluidly, in and out of the drivers seat,
apparently without discomfort. He and his counsel acknowledge a dramatic
difference between his presentation on the video and his presentation in court.
The plaintiff explains the difference by saying that he is capable of doing
what he does on the surveillance video only because of medical marijuana he
takes in the morning and at the end of the day. However, the plaintiff
introduced no medical expert report to support this contention, only his
evidence that this was the effect on him of his taking medical marijuana. I did
not find persuasive his evidence that marijuana would have the dramatic and
persisting effect that he asserts. The video surveillance showed him during different
times of the day, not simply in the morning (shortly after he would have
ingested a marijuana cookie), but into the afternoon as well, and his condition
appeared to be no different no matter what the time of day.
[104] Generally,
surveillance evidence can be relatively unhelpful to assess the condition of
plaintiffs as to whether they are performing activities without pain, or
whether their ability to perform activities is because of use of pain
medication, or stoicism, or other factors. However, the difference in this
case between the manner in which the plaintiff presented himself in court and how
he was shown on the surveillance video was dramatic. I did not find the
plaintiffs explanation persuasive that the dramatic difference was from his
taking marijuana while working, and not taking it while in court.
[105] The
plaintiff led no expert evidence on the pain controlling effect of medical
marijuana. The evidence about it and how the plaintiff got on this treatment
regime is sparse. Apparently, the plaintiff did not seek advice from any
treating doctor who has filed a report before embarking on this treatment
program.
[106] I have
concluded, based on a consideration of all of the evidence, that the plaintiff
is significantly exaggerating the extent of his injuries.
[107] It is
difficult to know what to make of the fact that the plaintiff attended his
general practitioner for 128 visits and appears to have repeated his symptoms
almost without change on each visit. He explained in his testimony that he
went to his doctor to report changes in his condition; however his doctor noted
each of his attendances with the plaintiff reporting no changes. The evidence
left me with the impression that the plaintiff was creating a record of his
injuries for his claim as there appears to be no reasonable medical
justification for the number of attendances before his family doctor. Rather
than supporting his credibility, this evidence of the numerous attendances on
his family doctor left me with the opposite impression.
[108] My
assessment of the plaintiffs credibility is also negatively affected by my
finding that there were inconsistencies in the plaintiffs reporting of his
symptoms to doctors. While it is not unexpected that there would be some
inconsistency in a patients reporting to his or her doctor, this aspect of his
evidence did not enhance the plaintiffs credibility. For example, Dr.
Condons records indicate the plaintiff told him in 2009 he no longer had
headaches, but in the plaintiffs testimony at trial he said that in 2009 he
had headaches almost every day continuing into 2012, three to four times a
week. The plaintiffs counsel suggests that inconsistency in reports should
not carry much weight because, compared to the back problem, the other injuries
were much less significant and some inconsistency in reporting ought not to be
unexpected. Nevertheless, they were inconsistencies that I find affect my
assessment of his credibility.
[109] The
observation that the plaintiff walked with a limp while being examined by Dr. Froh
but not when he did not think he was being examined or displaying his condition
to Dr. Froh supports my conclusion that he was exaggerating when he reported his
symptoms to the Court and to the doctors he saw.
[110] The
plaintiffs conduct immediately after the accident suggests an inclination to
overstate and exaggerate his injuries. It was unclear to me why the plaintiff
went home rather than going to work when it was not clear (other than his
suggestion of shock) that he was injured.
[111] I have
serious reservations about the plaintiffs credibility; however, I found the
plaintiffs wife credible and her observations provide some support for the
pain he says he has suffered.
[112] The
plaintiff said that prior to his prescription for medical marijuana, he tried
marijuana once or twice, but he did not care for it. However, there is
evidence to suggest the plaintiffs interest in marijuana is more than purely
for medical treatment purposes. His internet postings suggest that. Given my
concerns about the reliability of the plaintiffs evidence, and in the absence
of expert evidence, I am not persuaded that medical marijuana is required by the
plaintiff to treat his injuries.
Conclusions
[113] I find
that the plaintiff suffered a mild soft tissue injury to his back, and for a
time had neck and lower back pain as well as headaches. I find that the
injuries would have resolved within one year. I assess non-pecuniary damages at
$35,000. I do not think the plaintiff has suffered persisting injuries of any
significance. They certainly are not proven on the evidence.
[114] In terms
of wage loss, I think there was a period of time when the plaintiff missed work
before he fully recovered. The plaintiff argues that but for the accident he would
have continued to work at Top Producer and would have earned $36,000 per year, less
the income he actually earned up to the time of trial. The plaintiff suggests
that up to trial this amounts to $98,510 or a wage loss net of tax of $80,000.
[115] I disagree.
I find that the plaintiff has shown that he lost income up to trial for a
period of six months. The evidence does not show an inability to work at Top
Producer past that time. I find that the gross past loss of income to be
$18,000 or $3,000 per month. There should be, I think, a 20% income tax
deduction to arrive at the appropriate net award. As I did not hear
submissions on whether that is the appropriate deduction to reach a net income
loss award, the parties may make further submissions on this point, if they are
unable to agree.
[116] In terms
of loss of future earning capacity, the plaintiffs counsel says that an award
based on an assumed loss into the future of $5,000 to $15,000 per annum is
appropriate, and that I should make an award of approximately $275,000. I
disagree.
[117]
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. reviewed the
various approaches taken by the Court to assess this type of future loss. She
said, at paras. 30-33:
30 Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:
1. A future
or hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation [Athey at
para. 27], and
2. It is
not loss of earnings but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].
31 Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.
32 A plaintiff must always prove, as was noted by
Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A.
in Romanchych, that there is a real and substantial possibility of a
future event leading to an income loss. If the plaintiff discharges that
burden of proof, then depending upon the facts of the case, the plaintiff may
prove the quantification of that loss of earning capacity, either on an
earnings approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych
. A plaintiff may indeed be able to prove that there is a substantial
possibility of a future loss of income despite having returned to his or her
usual employment. That was the case in both Pallos and Parypa. But,
as Donald J.A. said in Steward, an inability to perform an occupation
that is not a realistic alternative occupation is not proof of a future loss.
33 On the facts of this
case, the trial judge found that there was no substantial possibility of a
future event leading to an income loss. That should have been the end of the
enquiry. That was a reasonable conclusion on the evidence because there was no
evidence that she was limited in performing any realistic alternative
occupation.
[118] Similarly
here, I do not find that there is the possibility of a future event leading to
an income loss. The plaintiff has not proven any loss of earning capacity, as
I am not persuaded that the plaintiff has continuing injuries or symptoms that
in any way impair his earning capacity. As such, I award no damages under this
head.
[119] The
special damages as claimed are accepted by the defendant and I will award those.
[120] The
plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400
a year for a suggested award of $20,000. The evidence does not support the
claim that medical marijuana is reasonably necessary: see Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.). As such, I award nothing for the cost of
future care.
[121] The
defendant argued that the plaintiff has failed to mitigate his damages by
failing to take steps that would have reduced or improved his alleged ongoing
symptoms. Given that I have concluded that the plaintiff has recovered from
his injuries and is not suffering the continuing injuries that he suggests, I do
not find that the plaintiff has failed to mitigate his damages. I am not
persuaded that his recovery would have been any faster than I have found it to
be had he followed the rehabilitative program recommended by Back in Motion. I
refuse to reduce this award for the alleged failure to mitigate.
[122]
The parties may speak to the issue of costs.
_____________________________________
The Honourable Mr. Justice J.S. Sigurdson